A Close Look at Expungement

Shannon Dorvall, general counsel at Imhoff & Associates, shares her specialised knowledge of expungement and its uses in this article.

What distinguishes ‘expungement’ from ‘sealing’ or ‘confidentiality’?

Expungement, sealing and confidentiality are three legally distinct methods of dealing with criminal records.

• Expungement is the process of destroying and eliminating records. The goal of expungement is to make it as though the records never existed. While this is the goal, its results vary widely depending on the state where the expungement is requested. Often, the term ‘expungement’ is used where the process is actually ‘sealing’, whereas a true expungement requires destruction of the record. For example, Kentucky uses expungement and sealing interchangeably in practice. Other states like Idaho explicitly permit the use of the two terms for the same process.
• Sealing makes records unavailable to the public but allows some agencies and individuals to access records.
• Confidentiality laws generally only apply to juvenile records and require that states make juvenile records confidential, allowing access to schools, crime victims, the media, and the public in specific instances.

Could you please explain the basic premise behind expungement? Who it is meant for and what does it entail?

The general idea behind an expungement is a do-over or reset. It is meant for people who committed a minor crime like shoplifting, minor drug offences or driving on a suspended license. People make mistakes. Mistakes should not define people. Expungements are an opportunity to start fresh in job searches and other facets of life.

Several people seeking expungements are people who did something ill-advised in their 20s or 30s and have moved forward, becoming an entirely different person often with a new life. Those small convictions can be the difference in failing to receive job offers or promotions in many fields. The goal is not to paper over someone’s past, but rather to give them another try.

Most states allow for some form of expungement for misdemeanours and over half allow expungement of certain felonies. There is no broad or general federal expungement statute and federal courts do not have the authority to expunge records of a valid federal conviction.

In most states where expungements are available, a person must prove they are worthy of the second chance. The grant of an expungement is not automatic. This is shown through an otherwise clean record, maintaining gainful employment, volunteerism and reference letters from loved ones.

People make mistakes. Mistakes should not define people.

In California, we use the term ‘dismissal’, meaning that the Court reverses a guilty plea and enters a dismissal. On paper, it looks like the case was not prosecuted. Unfortunately, this produces no change to the person’s arrest record. The former requirement to seal and destroy an arrest record was a finding of ‘factual innocence’. This was a nearly impossible standard as the person was required to demonstrate they were actually innocent of the crime versus merely not guilty. This often required a finding that no crime occurred or determining the actual culprit with some finding of guilt regarding that person. Few people were successful in reaching that standard.

Now, the law has been expanded to allow sealing and destruction of arrest records in many more cases, allowing more people a fresh start.

For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. Expungements, sealing or other mechanisms are not recognised unless there was a substantive structural or procedural error during the conviction process that led to the post-conviction relief.

What are the typical steps taken during expungement proceedings?

Although each state differs, most require the person seeking the expungement to begin the proceedings since the process is not automatic after the completion of a sentence.

The documents and information needed to complete the petition will vary based on jurisdiction. It may be imperative to have as much documentation such as arrest records, case numbers, judgments, etc. as possible to ensure the form is completed accurately.

After the filing is prepared, applicants should be prepared to submit the filing fee required by the court. Applicants should research all the required fees prior to submitting their application to ensure it is not rejected or delayed. Some courts, where applicable, may have a filing fee per offence a petitioner is applying for.

In states where a hearing is required for the expungement, the court will set a date. The hearing may be set anywhere from 30 days to months out depending on scheduling.

Another important thing to remember is that law enforcement and other agencies may take several months to destroy records.

Expungements are an opportunity to start fresh in job searches and other facets of life.

Does this process differ where juvenile records are concerned?

There is a common misconception that juvenile records are automatically sealed upon the juvenile reaching 18. The laws regarding this vary widely by state. Few states allow full expungement or sealing of juvenile records, especially in the case of felonies.

For those select few states, the process is usually not automatic. Probation or the prosecution has to make the request. Where juvenile records are subject to confidentiality while the person is a minor, the states have recognised the unique nature of these documents. The files go well beyond normal criminal proceedings to include things like mental health records, school records, grades, medical records, parental history, history of abuse and dozens of other intimate details. There is a movement to make this process automatic and remove barriers such as filing fees, but it is still off in the horizon.

What California-specific laws affect how these proceedings are carried out and what offences may be expunged?

California has been leading the charge in the area of automatic record sealing. Beginning on 1 August 2022, the court record of convictions set aside at any time under certain diversion and deferred entry of judgment code sections where the person has completed probation terms will be automatically sealed, per the ‘Clean Slate Act’ described below. Under this Act, the state records repository is presently prohibited from including in responses to requests from the public information about convictions that have been set aside in certain situations.

Beginning 1 January 2023, California will expand automatic record relief to all felony non-convictions six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison.

Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail.

The law also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after 1 January 2005 if they violated probation but later completed all terms of supervision. Previously, a probation violation would prohibit relief. Convictions for certain serious or violent felonies and registerable sex offences are not eligible for relief.

What are the limits of what an expungement order can achieve?

The expunged offence can still be used as a ‘prior’ to enhance sentences or charges in most instances, barring specific exceptions in state law prohibiting it. The person is usually also required to disclose an expunged conviction if they are seeking a licensure in certain fields like teaching or to obtain security clearance.

In most cases, the expungement orders do not automatically restore firearms rights.

California has been leading the charge in the area of automatic record sealing.

Per 18 U.S.C. § 922(g)(1), convictions in any court punishable by imprisonment exceeding one year, whether the conviction is under state or federal law, are subject to the prohibition on possession of firearms under federal law. Certain state laws may also prohibit possession of a firearm. Domestic violence convictions also terminate firearms rights under federal law § 922(g)(9).

People with state convictions may avoid the federal bars in §§ 922(g)(1) and (g)(9) if their convictions have been pardoned, set aside or expunged, or if their civil rights have been restored, unless the relief they obtained “expressly provides” that they “may not” possess firearms. See 18 U.S.C. §§ 921(a)(20), (a)(33)(ii). Automatic restoration of civil rights can restore firearms possession rights, but ambiguity remains.

Circuits remain split on how to interpret the ambiguous language of § 921(a)(20). What does “free of state firearms disabilities” mean in order for a person to take advantage of the relief offered by §§ 921(a)(20) and (a)(33)? Also, the term ‘expungement’ in these federal laws is overbroad and there is an open question as to whether it applies if a record has been sealed but not completely destroyed.

In what ways can modern internet-based media complicate the efficacy of an expungement order? Are there any ways to mitigate this?

A few states have information-sharing agreements with private companies that sell records – including juvenile records – online for a nominal fee. Online record check companies often use out-of-date information pulled from public court dockets and arrest or inmate reports with little to no concern for the accuracy of the information.

Those initial reports rarely match the current status of the person’s record but are difficult to correct. The online services can charge to ‘research’ a request for correction but are unlikely to correct the mistake short of a legal action. Clients and counsel should always keep copies of any orders granting sealing or expungement to strengthen their argument if there are online mistakes.

How can legal counsel act to ensure that a request for expungement has the best possible chance of success?

Counsel can assist clients in gathering and presenting the request in the best light. The prosecutors are usually given notice and an opportunity to object to motions where the court has discretion in granting the request. As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them.

What legislative trends are you seeing in this area?

Ban the Box

‘Ban the box’ legislation seeks to remove questions about criminal history from employment applications. Specifically, it seeks to eliminate the checkbox that asks if applicants have been convicted of a crime. Approximately 31 states, including California, have passed some form of ban the box legislation or fair chance policy. This generally requires that a conditional offer of employment be made prior to asking about convictions. 11 states also require private employers to remove questions from job applications that ask about previous criminal convictions.

‘Ban the box’ is currently focused on employment laws, but criminal records can negatively impact state or federal licensure, housing availability and education opportunities. If the goal is rehabilitation, forcing someone to wear a scarlet conviction for life prevents moving forward.

Federal employers are also subject to ‘ban the box’ rules that prohibit asking about convictions unless a conditional offer of employment has been made. Anything involving security, transportation or like jobs are excluded from ‘ban the box’ rules.

As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them.

H.R. 6667

H.R. 6667, aka ‘The Fresh Start Act of 2022’, is a bill pending in Congress to allow expungement of federal non-violent offences. If passed, the law would require automatic granting of an expungement for certain federal offences seven years after completing the sentence for the offence and discretionary relief one year after completing the sentence. The bill has a low chance of passage given the newly elected Congress that will form in January, but it is a large step in the right direction. Federal law for expungement is sharply limited to first time possession cases if someone was under 21 at the time of the offence.

Can you share any insights that you have gained from your own work regarding expungement?

Courts and prosecutors are reluctant to grant the person a fresh start. Even convictions that should be automatically sealed require vigilance to make sure a person gets the relief they deserve on the local and state level. Some of my biggest fights on these cases come not from the local prosecutor, but the state Department of Justice failing to recognize the relief.

About Shannon Dorvall

Please tell us about your journey into law.

I am one of those people who always wanted to be an attorney without having a clear idea of what they did. There were no other attorneys in my family, but my aunt was a barber who cut hair for many of the local lawyers. I would sit in her shop for hours and talk to various attorneys about the law, why they became lawyers and what they loved about their job. I would listen, completely enraptured, as they discussed a big trial or a hard-fought motion. The litigators were characters who both then and now remind me of street brawlers.

I won my first ‘trial’ in eighth grade. We were doing a project on American History and were assigned roles where we put actions from history on trial in front of a jury to decide if the actions would now be a crime. I was given the role of defence attorney. A local attorney volunteered to assist with the mock trial. My side won and our teacher was very upset because I was supposed to lose. The attorney calmed him down and explained the teacher should appreciate seeing the birth of a future attorney. I was hooked.

Not everyone can be Atticus Finch, but I wanted to try, so I applied to law school.

What attracted you to work in criminal law, and specifically as a defence attorney?

I attended law school at the University of Montana School of Law. Likely due to my eighth grade History project and watching the OJ Simpson trial live in high school, I was drawn to the criminal and Constitutional law courses. I completed a year of clinical work at the Federal Defenders of Montana around the time Crawford v Washington was decided. Watching the tireless dedication of the attorneys in the office combing through every single file they had ever had to see if someone may have qualified for habeas relief was inspiring. I lost count of the number of habeas I drafted that year.

I moved to California and have been practicing criminal law with Imhoff & Associates for my entire career. I recently transitioned to General Counsel for our Firm giving me more time to mentor interns and young lawyers.

Could you share any advice you may have for aspiring defence attorneys who may wish to follow your career trajectory?

Learn everything you can from anyone willing to teach you. Many aspects of life prove useful in criminal defence. I had no idea how much math and science I would need to read police reports, DNA profiles, autopsy reports and every other facet of discovery. Be open to seeing every side of an argument. Being blindsided is never fun, but there are definitely fun aspects to the work. I tell every intern the same thing. Do not assume you are right. Do the work and know you are.

 

Shannon Dorvall, General Counsel

Imhoff & Associates, PC

12424 Wilshire Blvd, Suite 700, Los Angeles, CA 90025, USA

E: shannondorvall@criminalattorney.com

 

Shannon Dorvall is an experienced general counsel who has transitioned from a strong multi-year history of practicing as a trial attorney in criminal defence. Shannon graduated from The University of Montana School of Law and is skilled in trial practice and post-conviction appellate and habeas work. She is licensed to practice in all California state and federal courts as well as the Supreme Court of the United States.

Imhoff & Associates is one of the largest criminal defence law firms in the United States, with a strong presence in most states as well as the District of Columbia and Puerto Rico. Its team handles a wide variety of criminal cases, including DUI/DWI, white collar crime, violent crime and more. The firm also assists in matters involving expungements, parole violations, criminal appeals and bail reduction.